Closed courts and secret evidence: Britain’s own Guantanamo Bay

The government is attempting to further shield itself from those seeking to obtain secret intelligence. Proposals contained in a new consultation green paper threaten to compromise the British system of open justice and the right to a fair trial.

The government is attempting to
further shield itself from those seeking to obtain secret
intelligence. Proposals contained in a new consultation green paper
threaten to compromise the British system of open justice and the
right to a fair trial.

A decade ago, the UK created a legal
regime based on the use of secret evidence: it was dubbed ‘Britain’s
Own Guantanamo'. Last month, the government sought to further
undermine Britain’s system of open justice. On 19 October, it
published a consultation green paper on justice
and security, in response to the growing number of court
cases brought against it seeking the disclosure of sensitive
intelligence information. Some of these cases involve former
Guantánamo prisoners, including the disclosure and compensation case
that ended in a secret
out-of-court settlement almost one year ago.

The proposals concerning procedural
fairness - how the courts should deal with sensitive information and
what can be disclosed and how – could, in particular, threaten the
very fabric of the British open system of justice and the right to a
fair trial. They come almost ten years after legislation was
railroaded through parliament to roll out some of the proposed
measures, first introduced in the 1997 Special
Immigration Appeals Commission (SIAC) Act, such as
closed hearings and the use of “special
advocates”. This triggered the creation of a legal
regime, based on the use of secret evidence, which has often been
described as “Kafkaesque”.

Two months after the 9/11 attacks, the
Anti-Terrorism,
Crime and Security Act (ATCSA) 2001 was passed,
bringing these measures to the fore; by the end of the year, eight
foreign nationals were detained without charge or trial at HMP
Belmarsh.. Although the relevant part of the Anti-Terrorism Act was
thrown out following a damning ruling by the House
of Lord in 2004, the various developments that
followed it have meant that many of the individuals detained under
this and consequent laws, have been subject to indefinite detention
of some form or other without any means of challenging the evidence
or knowing the allegations against them.

The Justice Secretary’s assessment of
how successful these measures have been in the green paper is
subjective. Nonetheless, yet more secrecy is proposed by “introducing
legislation to make closed material procedures (CMPs) more widely
available in [all] civil proceedings”. The argument is that this
would protect national security or the national interest – but
closed proceedings are in fact often used to protect the interests of
individuals and groups who stand to gain from evidence being
withheld. Hiding behind vulnerable minorities, these measures may
well protect other minorities, such as those in the intelligence
services who have not been playing by the rules. Had evidence of
Britain’s close intelligence-sharing relationship with the former
Libyan regime and direct collusion in extraordinary rendition to that
country not been discovered by Human
Rights Watch (HRW) during a recent visit, it is
possible that securing the non-disclosure of such information would
have been subject to a hotly-contested court battle, as in the cases
brought by former Guantánamo prisoners.

While these and other measures provide
a means of sweeping incriminating evidence of domestic and
international foul play by the government under the carpet, they
also undo the centuries-old tradition of open justice and the right
to a fair trial and habeas
corpus enshrined in law since the Magna
Carta in the 13th century.

Closed courts defy the purpose of legal
action and allow conspiracy theories to flourish, instead of providing answers to serious questions. These measures will
discourage legitimate claims being brought and will prevent any
useful disclosure to the public, except in instances such as those
made by HRW over Libya. Contrary to what the government appears to
anticipate, many of the measures in the green paper appear to
undermine the “human rights, justice and fairness” that this
government claims to respect. Closed evidence, which has been
creeping into the judicial system over the past decade, runs contrary
to democratic values and the established, healthy tradition of open and fair trials.

Aisha Maniar is a human rights activist who works with the London Guantánamo Campaign.

The London Guantánamo Campaign has been campaigning since 2006 for the release of all prisoners held at Guantánamo Bay, the closure of Guantánamo and other similar prisons and an end to the practice of extraordinary rendition.

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